Since January 1, 2021, employees in Massachusetts have been able to access paid medical leave. We previously discussed the implementation of these benefits in this blog, but since then the state has spent the first half of the year taking applications only for paid medical leave or a limited set of paid family leave (bonding with a child, supporting active-duty military family member). As of July 1, the benefits of the program will grow to include additional paid family leave benefits. This expanded benefit will allow eligible employees to take job-protected paid leave to care for a family member with a serious health condition.

Who is a “family member?”

For the purposes of PFML, a “family member” includes:

• spouse or domestic partner
• children (biological, adopted, foster, through legal guardianship or loco parentis, and/or step-children)
• parents (biological, adopted, foster, through legal guardianship or loco parentis, and/or step-parents)
• spouse or domestic partner’s parents
• grandchildren (biological, adopted, foster, through legal guardianship or loco parentis, and/or step-grandchildren)
• grandparents (biological, adopted, foster, through legal guardianship or loco parentis, and/or step-grandparents)
• siblings (biological and/or adopted)

Employers should note that the family member requiring care does not have to be located in Massachusetts.

What type of “care” does the family member need?

There are no specific criteria for what type of “care” the family member needs for their serious medical condition to qualify for paid leave, but it is clear that this must be for things they may not be able to accomplish on their own due to their condition. The Department of Family and Medical Leave offers some illustrative examples:

• Providing the daily living needs that the family member cannot perform due to their serious health condition, such as helping them get dressed or helping with meals;
• Providing transportation to the doctor or other facilities for appointments and treatment;
• Providing support for their serious mental health condition, such as taking them to therapy or medication appointments for major depression;
• Helping make arrangements for changes in care, such as a transfer to a nursing home.

What constitutes a “serious health condition?”

The Department defines a “serious health condition” for employees seeking paid medical leave as:

A serious health condition, including an illness, injury, impairment or physical or mental condition, that involves at least one of the following two conditions:

1. At least one night of inpatient care in a hospital, hospice or residential medical facility
2. Continuing treatment by a health care provider

There have been no separate criteria issued for family members, and the form to be completed by the family member’s medical provider certifying the condition is not yet available. It is safe to say that it will likely be akin to the Certification of Your Serious Health Condition form employees use for paid medical leave, which lists this definition as well.  Ultimately the designation of “serious health condition” is made by the health care provider.

How do employees apply?

First, the employee and employer should discuss the dates and frequency of leave needed to care for the family member.  The employee would then contact the family member’s health care provider and seek completion of the Certification of Your Family Member’s Serious Health Care Condition Form (not available yet). This form will state:

• That the family member has a serious health condition
• When the family member’s condition began
• How long the health care provider thinks the family member’s condition will continue
• Any other relevant details about the family member’s condition
• That the employee is needed to care for the family member
• Information about how often and for how long the family member needs the employee to care for them
• The name and address of the family member and their relationship to the employee

Once the certification form has been completed by the employee and the family member’s health care provider, the department may require further documentation to evidence the relationship between said employee and family member, such as a legal certificate (birth, marriage, etc.) or affidavit.

Are there limitations to the paid family leave?

Employees are eligible for up to 12 weeks of leave to care for a family member, regardless of any leave taken under another program prior to July 1, 2021 to care for a family member. The 12 weeks can be reduced by any paid family leave taken during the first half of 2021 for bonding with a child or supporting active duty military family members.  The maximum benefit available for paid medical and family leave is 26 weeks in a benefit year.

As employers and employees navigate the rollout of these additional paid family leave benefits, there will be questions and undoubtedly some of the interplays between medical and family leave may present challenges. The Department of Family and Medical Leave may update its guidance through the implementation on July 1 and in the weeks thereafter, but if you have questions about how to best manage requests for leave at your place of business, please feel free to reach out to our attorneys for advice and assistance.